Rule 42. Criminal Contempt

(a) Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that the judge saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.

(b) Disposition Upon Notice and Hearing. A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. The defendant is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment.

(As amended Mar. 9, 1987, eff. Aug. 1, 1987.)

Notes of Advisory Committee on Rules-1944

The rule-making power of the Supreme Court with respect to criminal proceedings was extended to proceedings to punish for criminal contempt of court by the Act of November 21, 1941 (55 Stat. 779), 18 U.S.C. 689 [see 3771, 3772].

Note to Subdivision (a). This rule is substantially a restatement of existing law, Ex parte Terry, 128 U.S. 289; Cooke v. United States, 267 U.S. 517, 534.

Note to Subdivision (b). 1. This rule is substantially a restatement of the procedure prescribed in 28 U.S.C. 386–390 [now 18 U.S.C. 401, 402, 3285, 3691], and 29 U.S.C. 111 [now 18 U.S.C. 3692].

2. The requirement in the second sentence that the notice shall describe the criminal contempt as such is intended to obviate the frequent confusion between criminal and civil contempt proceedings and follows the suggestion made in McCann v. New York Stock Exchange, 80 F.2d 211 (C.C.A. 2d). See also Nye v. United States, 313 U.S. 33, 42–43.

3. The fourth sentence relating to trial by jury preserves the right to a trial by jury in those contempt cases in which it is granted by statute, but does not enlarge the right or extend it to additional cases. The respondent in a contempt proceeding may demand a trial by jury as of right if the proceeding is brought under the Act of March 23, 1932, c. 90, sec. 11, 47 Stat. 72, 29 U.S.C. 111 [now 18 U.S.C. 3692] (Norris-La Guardia Act), or the Act of October 15, 1914, c. 323, sec. 22, 38 Stat. 738, 28 U.S.C. 387 (Clayton Act).

4. The provision in the sixth sentence disqualifying the judge affected by the contempt if the charge involves disrespect to or criticism of him, is based, in part, on 29 U.S.C. former §112 (Contempts; demand for retirement of judge sitting in proceeding) and the observations of Chief Justice Taft in Cooke v. United States, 267 U.S. 517, 539, 45 S.Ct. 390, 69 L.Ed. 767.

5. Among the statutory provisions defining criminal contempts are the following:

U.S.C., Title 7:

 Section 499m (Perishable Agricultural Commodities Act; investigation of complaints; procedure; penalties; etc.-(c) Disobedience to subpenas; remedy; contempt)

U.S.C., Title 9:

 Section 7 (Witnesses before arbitrators; fees, compelling attendance)

U.S.C., Title 11:

 Section 69 [former] (Referees; contempts before)

U.S.C., Title 15:

 Section 49 (Federal Trade Commission; documentary evidence; depositions; witnesses)

 Section 78u (Regulation of Securities Exchanges; investigation; injunctions and prosecution of offenses)

 Section 100 (Trademarks; destruction of infringing labels; service of injunction, and proceedings for enforcement)

 Section 155 (China Trade Act; authority of registrar in obtaining evidence)

U.S.C., Title 17:

 Section 36 [now 502] (Injunctions; service and enforcement)

U.S.C., Title 19:

 Section 1333 (Tariff Commission; testimony and production of papers-(b) Witnesses and evidence)

U.S.C., Title 22:

 Section 270f (International Bureaus; Congresses, etc.; perjury; contempts; penalties)

U.S.C., Title 28:

 Section 385 [now 459; 18 U.S.C. 401] (Administration of oaths; contempts)

 Section 386 [now 18 U.S.C. 402, 3691] (Contempts; when constituting also criminal offense)

 Section 387 [now 18 U.S.C. 402] (Same; procedure; bail; attachment; trial; punishment) (Clayton Act; jury trial; section)

 Section 388 [former] (Same; review of conviction)

 Section 389 [now 18 U.S.C. 402, 3691] (Same; not specifically enumerated)

 Section 390 [now 18 U.S.C. 3285] (Same; limitations)

 Section 390a [now 18 U.S.C. 402] ("Person" or "persons" defined)

 Section 648 [now Rule 17(f), FRCP, 18 U.S.C., Appendix; Rule 45(d), FRCP, 28 U.S.C., Appendix] (Depositions under dedimus potestatem; witnesses; when required to attend)

 Section 703 [former] (Punishment of witness for contempt)

 Section 714 [now 1784] (Failure of witness to obey subpena; order to show cause in contempt proceedings)

 Section 715 [now 1784] (Direction in order to show cause for seizure of property of witness in contempt)

 Section 716 [now 1784] (Service of order to show cause)

 Section 717 [now 1784] (Hearing on order to show cause; judgment; satisfaction)

 Section 750 [now 2405] (Garnishees in suits by United States against a corporation; garnishee failing to appear)

U.S.C., Title 29:

 Section 111 [now 18 U.S.C. 3692] (Contempts; speedy and public trial; jury) (Norris-La Guardia Act)

 Section 112 [now Rule 42, FRCP, 18 U.S.C., Appendix] (Contempts; demands for retirement of judge sitting in proceeding)

 Section 160 (Prevention of unfair labor practices-(h) Jurisdiction of courts unaffected by limitations prescribed in sections 101–115 of Title 29)

 Section 161 (Investigatory powers of Board-(2) Court aid in compelling production of evidence and attendance of witnesses)

 Section 209 (Fair Labor Standards Act; attendance of witnesses)

U.S.C., Title 33:

 Section 927 (Longshoremen's and Harbor Workers' Compensation Act; powers of deputy commissioner)

U.S.C., Title 35:

 Section 56 [now 24] (Failing to attend or testify)

U.S.C., Title 47:

 Section 409 (Federal Communications Commission; hearing; subpenas; oaths; witnesses; production of books and papers; contempts; depositions; penalties)

U.S.C., Title 48:

 Section 1345a (Canal Zone; general jurisdiction of district court; issue of process at request of officials; witnesses; contempt)

U.S.C., Title 49:

 Section 12 [see 721(c)(2), 13301(c)(2)] (Interstate Commerce Commission; authority and duties of commission; witnesses; depositions-(3) Compelling attendance and testimony of witnesses, etc.)

Federal Rules of Civil Procedure:

 Rule 45 (Subpoena) subdivision (f) (Contempt)

Notes of Advisory Committee on Rules-1987 Amendment

The amendments are technical. No substantive change is intended.

Taft-Hartley Injunctions

Former section 112 of Title 29, Labor, upon which subd. (b) of this rule is in part based, as inapplicable to injunctions issued under the Taft-Hartley Act, see section 178 of said Title 29.

Federal Rules of Civil Procedure

Rule 45 (Subpena) subdivision (f) (Contempt).

Cross References

Admission to bail, see rule 46.

Criminal contempt constituting an offense, see section 402 of this title.

Jury trial-

Criminal contempt, see section 3691 of this title.

Labor dispute contempt, see section 3692 of this title.

Power of court to punish for criminal contempt, see section 401 of this title.

Rule Referred to in U.S. Code

This rule is referred to in title 15 section 1267.